Wadelton v. Dept. of State, No. 13-412, 2015 WL 3372378 (D.D.C. May 26, 2015) (Chutkan, J.)
Re: Request for records concerning plaintiff
Disposition: Denying defendant's motion for partial summary judgment
- Procedural Requirements, Searching for Responsive Records: The court holds that "[a]lthough it is true that Defendant is entitled to limit its search to locations most likely to contain responsive documents, . . . Defendant's justification for limiting its search in this case raises more questions than it answers, and does not confirm that [the Director of the office in question's] files were the only files 'likely to contain responsive documents.'" Additionally, the court finds that "[i]f documents of former employees existed at the time of the search, it makes no difference whether the individuals who created or maintained those documents were still employed by the State Department because FOIA imposes a disclosure obligation only as to documents in the agency's possession at the time of the FOIA request." Also, "[w]ithout evidence regarding whether State destroyed the records of these other employees and, if so, at what point in time those records were destroyed, the court cannot yet conclude that State conducted a reasonably thorough search." Additionally, the court finds that defendant "does not provide any information from which the court can conclude that these two individuals were the only individuals in that office likely to have emails or other electronic documents about [plaintiff]." Regarding a different portion of the search, the court finds that "[n]either [of defendant's] statement[s] confirm the reasonableness of the decision to search for only emails."
Regarding the searchers themselves, the court holds that "[p]laintiffs' assumption that [two employees who conducted a portion of the search] must have acted in bad faith because they were at one point named as defendants in [plaintiff's] lawsuit against the Government does not rise to the level of proof necessary to overcome [defendant's] presumption [of good faith]." The court finds that "searches conducted by those who created or maintained the documents—even against a backdrop of allegations of wrongdoing—have been deemed reasonable when challenged."
- Litigation Considerations, Vaughn Index/Declaration:The court rejects plaintiff's contention that defendant's declaration and index are conclusory. The court finds that "[defendant's] Declaration outlines State's understanding of the relevant exemptions, which are then applied to the specific withholdings in a 56–page index (the Vaughn index)." Both documents contain "sufficient information to enable the court to evaluate the asserted exemption, which is all that is required of the Defendant."
- Exemption 5, Attorney Work-Product: The court finds that while "neither party offers to the court an explanation or argument about aspects of the OSC and OIG investigations: the nature of each office's relationship with the State Department and [plaintiff], how the investigations were initiated, the findings of each investigation, the ramifications of the investigations, and so forth," "[i]t is clear [based on the court's review] that both OSC and OIG were investigating 'particular transaction[s],' such that documents related to the investigations ought to fall within the scope of the work-product protection."
- Exemption 5, Deliberative Process Privilege: The court holds that "the documents [at issue] contain material clearly protected by the deliberative process privilege." The court finds that "generally these documents are both deliberative, in that they reflect comments about the pros and cons of various promotion selections, and predecisional, in that they were made prior to any decision." However, the court also finds that "State's statement that the document 'may or may not reflect' a final decision raises the possibility that State did not properly segregate the exempt material from the non-exempt material." "Similarly, questionnaires sent by OIG 'to board members as part of the OIG's investigation into [plaintiff's] grievances, including the board members' responses to the questions[,]' appear to be predecisional and deliberative." The court explains that "[t]he board members' answers describing the procedures and decisions made with respect to [plaintiff] are privileged to the 'extent they recount or reflect predecisional deliberations.'"
- Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "the Government's conclusory assertion that it satisfied its segregation mandate is particularly troubling in the context of the handwritten notes which 'may or may not reflect' raters' final decisions on promotion." "If the final decision is reflected somewhere in those notes, that decision is likely not shielded from disclosure and, to the extent reasonable and practicable, should have been produced with redactions over the legitimately privileged material." "Either the final decision is not reflected in the documents, in which case full withholding is appropriate, or the final decision is reflected in the documents, in which case State must provide additional information justifying the decision not to redact the predecisional material and produce the final decision." The court finds that "[a]bsent that showing, summary judgment on the issue of segregability is improper at this time."